Coming Clean on SOPA

In October 2011, members of the US House of Representatives introduced a piece of legislation called the “Stop Online Piracy Act,” or SOPA. The stated goal of the bill is pretty much what its name implies. Specifically, it deals with US access to foreign websites that traffic in the unauthorized distribution of intellectual property.

As an organization that wants to ensure that artists can maximize the value of their copyrights, FMC is interested in any legislative or policy proposal that would help musicians protect their rights online. However, this bill, like many that have come before, raises serious concerns about unintended consequences. Therefore, we cannot support SOPA in its current form.

Earlier this year, we examined SOPA’s Senate companion, PROTECT-IP. That bill was a worthy attempt to protect rightsholders but featured a few important areas of concern. Similarly, SOPA’s stated goals may be laudable, but we have some strong concerns with its specific requirements. The bill contains vague provisions that could have overly broad impact. We believe it would require substantial revision to avoid harming legitimate services that are making efforts to pay copyright owners.

In the past, we’ve taken the time to explain why proposed legislation to make illegal streaming carry similar penalties to unauthorized distribution is unlikely to put YouTubers in jail. We’ve translated the voluntary “best practices” of credit card companies and payment processors to investigate infringement claims. We given the Copyright Alert System a pass with the sincere hope it brings relief to the creative sector. Our process is consistent: if there’s stuff that’s good we point it out. If there’s stuff that isn’t, we point that out, too.

FMC wants to make sure that musicians understand the potential impact of the bill, so we’ve pored over it in order to report back to you.

There’s a lot in the 78-page Stop Online Piracy Act, but we’ll stick to just a few basic points. We invite anyone who wants to respond — pro or con — to do so in the comments, or contact us about a guest post.

What’s in a definition?SOPA’s definitions around “infringing” sites and services are seemingly broad enough to include sites that have perfectly legitimate uses. For example: some of us here at FMC are musicians and producers. We regularly use services like Dropbox, etc. to send files back-and-forth to collaborators. Under this bill, such services — and those yet to be invented — could be subject to blocking or other penalties. Unlike the Senate bill with its more tailored definition, SOPA could target any foreign site or service that “facilitates” infringement. That net seems too wide for comfort.

Nothing but a Number
Another concern with SOPA is that it impacts an underlying feature of the internet — the Domain Name Server system (DNS). Think of DNS as a global phonebook for the web, where a site’s numerical address is converted to words and letters. Instead of typing in a string of numbers like 69.65.119.60, DNS servers let users type in easier-to-remember names, like futureofmusic.org. If a site appeared on a government blacklist, these servers would be instructed to no longer “resolve” the address. Keep in mind that it is incredibly easy for an infringing site to switch domain names — the underlying content is still there. Additionally, a user could also simply type in the numerical IP address and go straight to the site. Worse, by switching to a domain name server in another country, those in the US seeking that material could end up surfing in some of the most parasitic and dangerous backwaters of the internet (and bringing back what they catch). The authors of the bill seem to recognize how easy it is to get around DNS redirects, so they’ve also authorized the attorney general to go after anyone who provides a product or service to do so. But if we start blocking access to foreign sites, will other countries take that as a green light to start blocking access to ours? Is it a good idea to open this can of worms at a critical time for global information openness and security?

Beyond the DMCA
There is some question about what this bill means for existing law, namely the Digital Millennium Copyright Act (DMCA). That legislation, passed in 1998, attempted to strike a balance between protecting rightsholders and allowing for continued innovation online. An important part of the DMCA are its “safe harbors,” which protects online service providers from liability for third-party content uploaded to their sites, provided they quickly remove or disable access to material upon receiving notification from rightsholders. Recent court cases have hinged on whether a site or service had “specific knowledge of infringement.” If not, a site may be within its safe harbors. There is concern that the language in SOPA could force a site or service to monitor activity, out of fear that they would otherwise be “avoiding confirming” non-infringement. Under such an obligation, we may never see the next amazing platform for user-generated expression (and creator compensation).

We at FMC want to see the growth of a legitimate digital music marketplace that rewards creators and fans. We support efforts to protect rightsholders online and encourage fans to participate in platforms where creators get paid. We genuinely hope that if Congress gets involved that they find a way to support creativity without compromising free expression and innovation. In its current form, SOPA is not that bill.